Academics file petition to annul anti-gay legislation

A group of Ugandan academics have signed a petition filed at the Constitutional Court in an attempt to have the Uganda’s anti-homosexuality legislation annulled.

There was an outcry at home and internationally when the new legislation was passed into law by President Yoweri Museveni on 29 May because it says that while identifying as gay would not be criminalised, “engaging in acts of homosexuality” would be an offence punishable with life imprisonment.

Capital punishment would also be imposed for having gay sex when HIV positive and merely “promoting homosexuality” is punishable with a 20 year sentence.

There are two Constitutional Court petitions against the law. One was filed by a group led by Ugandan academic, Professor Sylvia Rosila Tamale, who holds a law degree from Makerere University, a masters from Harvard Law School and a PhD in sociology and feminist studies from the University of Minnesota, also in the United States.

Tamale was the dean of the faculty of law at Makerere University, from 2004-08, the first female to hold the position. She also founded and serves as coordinator of the Law, Gender & Sexuality Research Project at Makerere University.

Other academics in the group include constitutional lawyer Dr Busingye Kabumba, who is a senior law lecturer at Makerere University.

A second petition was filed by a group of advocates, activists and academics including Dr Frank Mugisha, a recipient of the 2011 recipient Robert F Kennedy Human rights award and 2017 Nobel peace prize nominee, as well as feminist Solome Nakaweesi Kumbugwe and researcher Jackline Kemigisa.

In their grounds of appeal, filed in early June, the academics and their fellow petitioners said the new law violates freedom of thought, conscience and belief, including academic freedom, which is guaranteed under articles 20 and 29 (1) (b) of Uganda’s constitution.

They also said the law violates freedom of speech, expression and assembly and the right to impart, access and receive information as well as practice one’s profession.

Outside the petition, others such as researcher Kemigisa have been writing articles expressing how their academic professions will be affected by the new law.

In one opinion article, Kemigisa said the legislation endangers her work and freedom as a researcher covering queer and feminist movements in Uganda.

“This law, and its politicised ignorance, could also hinder my academic freedom to study the coloniality of gender and sexuality. The poorly defined offence of ‘promotion of homosexuality’ could apply to subjects such as decolonial theory, queer theory, feminism, and gender studies, which would make them no-go zones for many researchers,” wrote Kemigisa.

“Ultimately, the law could erase gender analysis, contextualisation of homosexuality in Ugandan history studies, and any number of other research practices from our academic culture. Our education system itself would then produce students with no critical analysis of gender, sexuality or their coloniality within our society.”

Crackdown on LGBT population

Anti gay legislation was first introduced in October 2009, by Uganda’s then-first-term lawmaker, David Bahati. The Anti-Homosexuality Bill enabled the state to crack down on the country’s gay, lesbian, bisexual and transgender populations.

Bahati, who was later rewarded and is now Uganda’s Minister of State for Trade, Industry and Cooperatives, appears to have been the author of the initial proposals that, among others, provided for up to three years in prison for failure to report a homosexual; seven years for ‘promotion’ of homosexuality; life imprisonment for a single homosexual act; and, the death penalty for ‘aggravated homosexuality’ which includes gay sex while HIV-positive, gay sex with a disabled person.

In December 2013, Uganda's parliament passed the law, but the capital punishment clause had been removed in favour of life imprisonment.

President Yoweri Museveni subsequently enacted the law with a text that said the ACT was “to prohibit any form of sexual relations between persons of the same sex; prohibit the promotion or recognition of such relations and to provide for other related matters”.

But in August of the same year, the country’s Constitutional Court dismissed the legislation on a technicality that parliament had passed it without a quorum after a coalition of more than 50 civil society organisations advocating for non-discrimination in Uganda had filed a petition at the Constitutional Court on 11 March 2014.

The victorious petitioners had argued that “the Anti-Homosexuality Act violates Ugandans’ Constitutionally guaranteed right to: privacy, freedoms of expression, thought, assembly and association; among others”.

Fast forward to February 2023. The new anti-gay bill resurfaced in Uganda’s parliament for debate.

Funding for HE

Uganda's anti-gay stance has previously affected its universities partnerships with foreign institutions of higher learning, something likely to continue since the harsher law is now in place.

For example, in 2013, the United Kingdom's Buckingham University which had been accrediting courses at Victoria University in Kampala stopped doing so citing Uganda’s stance against human rights.

Victoria’s chancellor told journalists at the time that the two institutions had disagreed about whether to include a clause in Victoria's statute banning discrimination on the basis of sexual orientation. Victoria University refused to include the clause, claiming it had to comply with Ugandan law.

Other foreign universities have also offered solidarity.

In 2021, the University of York named its new college after Ugandan human rights defender and gay rights activist, David Kato. Kato attended the University of York in 2010 for six months as a Protective Fellow on the Human Rights Defenders Programme at the Centre for Applied Human Rights (CAHR).

After returning home, he was killed weeks after winning a court victory over a tabloid paper that called for homosexuals to be murdered.

Donor funding for higher education is also likely to be affected by the new development in Uganda. At least 40% of Uganda's national budget is foreign subsidised, particularly for key sectors such as health and education.

Early signs of the impact emerged on 29 May when US President Joe Biden released a statement condemning the Ugandan law adding that he had directed the National Security Council to evaluate the implications of this law on all aspects of US engagement with Uganda, including other forms of assistance and investments.

He also said the US was considering additional steps, including the application of sanctions and restriction of entry into the United States against anyone involved in serious human rights abuses.

Biden’s statement was followed by the US State Department's June 123 travel advisory against travelling to Uganda.